The Law Society of England and Wales has recently published a new Q&A on how to use electronic signatures and complete virtual executions of documents in times of COVID.
The Companies Act 2006 regulates the manner in which documents (including deeds) are executed by a UK company. A company can execute a deed by affixing its common seal, or by signature on behalf of the company by two authorised signatories (usually two directors or a director and the secretary) or by a director in the presence of a witness who attests the director’s signature. What if the company only has one director/authorised signatory and that person is isolating due to COVID? Can he/she validly execute a deed if required? The same question applies to an individual, who, in order to validly execute a deed, must also do so in the “presence of a witness”.
Neither the Companies Act 2006 nor the Law of Property (Miscellaneous Provisions) Act 1989 specify “physical” presence, hence there has recently been some debate about whether the requirement may be satisfied by remote forms of witnessing, such as by video link or other types of technology.
The Law Society has recently confirmed that to be certain that a deed has been validly executed, the witness must be physically present (i.e. in the physical presence of the signatory) to witness the act of signature by the person signing the deed. This is the case whether that signature is applied electronically or otherwise. Developments in case law or statute are needed before one could, with any certainty, comfortably extend presence to mean something other than physical presence.
Where individuals are required to socially distance, in order to comply with the requirement for a witness to be physically present, consider witnessing through a window (whether open or closed) or at a distance or in an outside public space. So long as the witness is physically present and able to see the signatory sign the document, these are all valid forms of witnessing.
If you have any queries around these rules and would like to discuss further with one of our specialists, please contact us on 0203 740 2360 or email Ilana Menachemson at Ilana.email@example.com
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.